Barkley v. New York Cent. & H. R. Railroad

54 N.Y.S. 970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1898
• Status: Published

Opinion

HARDIN, P. J.

Upon the papers presented at the special term the plaintiff was entitled to an order of substitution upon payment or securing the attorneys’ fees, or unconditionally, if the court was of the opinion that the misconduct of the plaintiff’s attorneys had been such as to bring the case within the rule laid down in Re Prospect Ave., 85 Hun, 257, 32 N. Y. Supp. 1013. In delivering the opinion in that case, Pierce v. Waters, 10 Wkly. Dig. 432, was referred to with approbation so far as it states the rule, viz.:

“Upon an application by a party for substitution of another attorney in place of his attorney of record, ordinarily the court will see that the attorney is protected as to his fees; yet where the attorney’s conduct has been improper and neglectful the court will deny this protection and direct an unconditional substitution, leaving the attorney to his action for his fees.”

The rule announced in the two cases referred to seems to be supported by authority. See In re Lexington Ave., 30 App. Div. 602, 52 N. Y. Supp. 203.

The motion before the special term was twofold in its nature, and that court was called upon to determine whether the substitution should be made on condition of payment of the attorneys’ fees or granted absolutely and unconditionally for the reason of the alleged misconduct of the attorneys. In respect to the latter branch, of the motion there is a grave conflict in the affidavits and papers used upon the motion, and, inasmuch as the order must be reversed, we are disinclined to pass conclusively upon that branch of the motion. We think the order should be reversed, and the special term directed to determine whether the substitution should be conditional that the attorneys’ fees are paid, or unconditionally after a reference is ordered to determine the disputed questions of fact arising in the further consideration of the motion. At the hearing at the special term it was alleged that the plaintiff had parted with a portion of his interest in the right of recovery of damages. Upon the hearing before us a copy of the contracts referred to in the affidavits was produced, and, doubtless, upon a reference they will be produced before the referee.

Order reversed, with $10 costs and disbursements to the appellant, payable by the respondents. It is further orderéd that it be referred to Hon. James C. Smith to take evidence, and report the same to the special term, with his opinion, as to the terms upon which a substitution of attorneys shall be ordered, and either party is at liberty to bring on the hearing before the referee upon eight days’ notice. All concur.